United States v. $100,348.00 in U.S. Currency

WARDLAW, Circuit Judge,

dissenting in part:

I respectfully dissent from Part VI of the majority opinion holding that Mayzel has standing to assert a challenge to the amount ordered forfeited based on the Eighth Amendment’s Excessive Fines Clause. Based on the text, history, and purpose of the Eighth Amendment, I would conclude that the district court erred in permitting Mayzel to assert such a claim.

The Eighth Amendment forbids the “im-pos[ition]” of “excessive fines” alongside its more familiar bans on “[ejxcessive bail” and “cruel and unusual punishments.” U.S. Const, amend. VIII. This amendment, and the Excessive Fines Clause in particular, was the subject of very little debate among the Framers, and thus little is known about its original meaning. See Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 264-65, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989). The Supreme Court has recently held that it applies to some types of civil forfeiture as well as to the imposition of criminal fines. See Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). The touchstone for whether civil forfeitures are treated as fines for the purposes of the Excessive Fines Clause is the extent to which the forfeitures are “punitive.” Id. at 610, 113 S.Ct. 2801.

The Court’s current test for excessiveness of a civil fine was announced in United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). Once it is determined that a civil forfeiture is at least in part “punitive,” a court must inval*1125idate it if it is “grossly disproportional to the gravity of [the] defendant’s offense.” Id. at 334, 118 S.Ct. 2028. Previously, we had a different test for exeessiveness, focusing on the “culpability of the owner” of the forfeited property, even when that person was not the “defendant.” United States v. 6380 Little Canyon Rd., 59 F.3d 974, 986 (9th Cir.1995). We justified our earlier standard on the basis that “[t]he otmer’s culpability is relevant because it is the owner who is punished by the forfeiture.” Id. (citing Austin, 509 U.S. at 618-19, 113 S.Ct. 2801) (emphasis in original).

Mayzel argues that the switch from relying on the “owner[’s]” culpability to relying on that of the “defendant[ ]” (who is more likely to be the claimant) signals the Court’s disagreement with the general principle that it is the owner of the property who is punished by forfeiture. Thus, he suggests that the Court has implicitly granted all possessors of seized property standing to assert an Excessive Fines challenge to the amount of forfeiture. This is an erroneous interpretation of Ba-jakajian. Bajakajian stands for the simple proposition that for purposes of the “gross proportionality” analysis, the relevant comparison is between the value of the property seized and the conduct of the person from whom it is seized. This is consonant with the theoretical underpinning of civil in rem forfeiture, according to which the forfeited property itself is the subject of proceedings for its involvement in illegal activities committed by the person it is seized from, not necessarily its owner. See generally Bajakajian, 524 U.S. at 330, 118 S.Ct. 2028. That the defendant’s conduct is one of the factors in the proportionality analysis has no bearing on the question we face here, i.e., determining who is “punished” by civil forfeiture for Eighth Amendment purposes.

The Bajakajian opinion recognized that owners of seized property and the criminal defendants from whom the property is seized are frequently not the same persons, id. at 328 n. 3, 118 S.Ct. 2028 (explaining that when the government seizes funds from a “cash courier” it will ordinarily “investigate the source and true ownership of [the] unreported funds,” i.e., the “kingpin[ ],” in an attempt to prosecute that person as well), and even cited the fact that “innocent owners” of seized property normally have a defense to civil forfeiture. Id. at 328, 118 S.Ct. 2028. Indeed, the very notion of an “innocent owner” defense is only consistent with the principle that it is the owner who is punished by an unconstitutionally excessive fine. Thus, there is no reason to depart from our previous determination that it is the owner of seized property — not necessarily the person from whom the property is seized — who is “punished” by its forfeiture for Eighth Amendment purposes.

This conclusion is unremarkable. The Bill of Rights guarantees numerous personal rights to individuals. L.A. Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 39, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) (“[A] cardinal principle[ ] of our constitutional order [is] the personal nature of constitutional rights .... ” (emphasis added)); Whitmore v. Arkansas, 495 U.S. 149, 160, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (only a person himself subject to the death penalty has standing to assert an Eighth Amendment objection under the Cruel and Unusual Punishment Clause to its imposition); Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) (“Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.”). The constitutional doctrine of standing guarantees that only those people whose rights are violated may sue for their restoration. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221, 94 S.Ct. 2925, 41 L.Ed.2d *1126706 (1974) (“[Standing] requires] that the complaining party ... suffer[ ] a particular injury caused by the action challenged as unlawful.”).

It is possible, however, that in certain cases a person who is not the owner of seized property may nevertheless suffer on account of its forfeiture in a manner sufficient to implicate Eighth Amendment concerns. Such a situation might arise, for example, when the possessor owes a substantial legal or contractual duty to the owner, or even perhaps where there is an immediate familial relationship between the owner and the possessor. There are two different theoretical rubrics that we could use to analyze such a situation: We could deem that, in addition to the owner, a possessor of seized property is somehow also always “punished” for Excessive Fines purposes by a proposed forfeiture, and thus always entitled to make a constitutional challenge to the amount forfeited; or we could use the existing doctrine of “third-party standing” to evaluate whether the possessor had a sufficient stake in the seized property so as to permit him to assert an Excessive Fines claim on behalf of the owner.

Which of the two approaches is appropriate is a matter of first impression. Preliminarily, we must consider two cases cited by Mayzel which, he asserts, have already addressed this issue, and resolved it in favor of his position. First, he cites one of our cases involving a currency seizure in which the claimants were two brothers: one brother had allegedly wired the currency to the other, and the latter had been arrested and convicted for failing to report the currency before leaving the United States for the United Arab Emirates. See United States v. $69,292.00 in U.S. Currency, 62 F.3d 1161, 1163-64 (9th Cir.1995). We remanded the case to the district court for a determination of the actual ownership of the currency, which was in dispute, and thereafter for an Excessive Fines determination if necessary. Id. at 1168. Mayzel asserts that the fact that our opinion did not specify in its concluso-ry remarks whether only the brother who is determined to be the owner will be able to assert an Excessive Fines defense implicitly condones either brother’s assertion of such a defense. This contention is without merit. That we ordered the determination of ownership to occur before any hearing of an Excessive Fines defense, if anything, supports the opposite view: that only when the true owner is determined will the district court be in a position to entertain a constitutional challenge to the proposed forfeiture from the correct party.

The other case cited by Amiel is an unpublished district court order from the Eastern District of New York. See United States v. U.S. Currency in the Sum of Ninety Seven Thousand Two Hundred Fifty-Three Dollars ($97,253.00), More or Less, No. 95-CV-3982 (JG), 1999 WL 458155 (E.D.N.Y. June 30, 1999). That case examined whether a bailee of seized currency had standing to contest its forfeiture on Eighth Amendment grounds; the court there determined that the bailee had standing under Article III and that he had complied with the jurisdictional procedural requirements of Supplemental Rule C(6)— what the district court termed “statutory standing.” Id. at *4-*8. The district court did not, however, make any inquiry or pronouncement regarding the propriety of the bailee’s assertion of the owner’s constitutional claims (although if it had, it might have found the bailor-bailee relationship sufficient to establish third-party standing).

The cited cases fail to support Mayzel’s view, and in any event, the better approach is to rely on traditional principles of standing rather than to create a blanket rule granting standing to assert Eighth *1127Amendment rights to any and all possessors, who could range from a person who found the seized property on the street, to a thief, to an unwitting traveler into whose bag the seized property was surreptitiously placed.1 Rather, it appropriately requires a careful case-by-case analysis of the relationship between the owner and the possessor to determine whether the possessor in a particular case should be entitled to assert any Eighth Amendment interest in the property.2

The correct approach would require us to evaluate Mayzel’s claim that the proposed forfeiture is unconstitutionally excessive. The general rule of third-party standing, or jus terkii, forbids one party from asserting the injuries of another. See Powers v. Ohio, 499 U.S. 400, 410-11, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Courts have recognized an exception to this rule when “three important criteria are satisfied”: (1) “the litigant must have suffered an injury in fact, thus giving him or her a sufficiently concrete interest in the outcome of the dispute”; (2) “the litigant must have a close relationship to the third party”; and (3) “there must exist some hindrance to the third party’s ability to protect his or her own interests.” Id. (citing Singleton v. Wulff, 428 U.S. 106, 112-16, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)). These requirements are designed to ensure that a court’s decision regarding a right asserted by a third party will not be unnecessary “ ‘in the sense that the right’s enjoyment will be unaffected by the outcome of the suit.’ ” Voigt v. Savell, 70 F.3d 1552, 1564 (9th Cir.1995) (quoting Singleton, 428 U.S. at 115, 96 S.Ct. 2868). A third party may litigate another person’s rights only if “the third party can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal.” Sec’y of State v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984).

Here, regardless whether Mayzel can claim that he has suffered some cognizable injury, he has failed to demonstrate that he satisfies the latter two Powers requirements. Although the courts have provided no clear definition of what constitutes a constitutionally requisite close relationship, when it is met “ ‘the relationship between the litigant and the third party [is] such that the former is fully, or very nearly, as effective a proponent of the right as the latter.’ ” Voigt, 70 F.3d at 1564-65 (quoting Singleton, 428 U.S. at 115, 96 S.Ct. *11282868). This requirement is not formidable. See, e.g., Craig v. Boren, 429 U.S. 190, 194, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (permitting a liquor-store operator to assert the Equal Protection rights of her underage male patrons); see also 13 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531.9 nn. 63-69 (2d ed. 1984 & Supp.2003) (listing constitutionally adequate close relationships as including vendor-client, physician-patient, attorney-client, employee — employer, electoral candidate — voter, school board — student).

Although the parties neither raised this point below nor on appeal,3 the majority engages in a California state-law analysis to determine the legal nature of Mayzel’s and Amiel’s relationship. See United States v.1980 Lear Jet, 38 F.3d 398, 402 (9th Cir.1994) (“[S]tate law governs the existence and extent of [a person’s] property interest....”). It concludes that Mayzel was a “gratuitous bailee” of Amiel’s, see Cal. Civ.Code § 1844; Todd v. Dow, 19 Cal.App.4th 253, 23 Cal.Rptr.2d 490 (1993), and that such a relationship is sufficient to confer first-party standing. I would not even conclude that the relationship here is sufficiently close to satisfy that prong of the third-party standing inquiry. That is the beginning, however, not the end of the relevant inquiry. Although state law defines the legal relationship between the parties, and their respective rights and duties, the question whether that state relationship vests the claimant with sufficient interest to bring a federal constitutional claim in federal court is one governed by federal law.4 See United States v. Portillo, 633 F.2d 1313, 1316-17 (9th Cir.1980).

A gratuitous bailment under California law is barely a legal relationship at all. The gratuitous bailee has a duty to use “slight care” over the bailed items, and has a duty to return the bailed item to the bailor on demand. See Todd, 23 Cal.Rptr.2d at 494. The bailor retains all legal rights, including full title, to the bailed items unless and until the bailee turns the bailed items over to the intended recipient, at which point the gift delivery is completed and title vests in the recipient. See Alcaraz-Garcia, 79 F.3d at 775. Furthermore, as the majority acknowledges, the responsibilities of a gratuitous bailee, like those of members of any other legal relationship, can be modified by contract, see Kaye v. M’Divani, 6 Cal.App.2d 132, 44 P.2d 371, 373 (1935), such as the claimed oral agreement between Mayzel and Amiel in this case: “should anything ever happen to [the $100,000], that perhaps [Mayzel] wouldn’t be responsible for it.”

Thus, without deciding generally whether a gratuitous bailee could ever have a sufficiently close relationship with the bail- or to satisfy the “close relationship” stan*1129dard, or could ever be sufficient to confer first-party standing, the fact of the matter is that such a relationship does not exist here. Mayzel and Amiel hardly knew each other, other than through a vague family connection, and had never spoken to one another before the date Amiel gave Mayzel the money. Moreover, Mayzel states that he was not compensated in any way for his courier services, and that he specifically assumed no liability for the money if anything happened to it. If the “close relationship” requirement is to mean anything at all, it cannot be satisfied by this ersatz association.

Turning to the third prong of the jus terbii inquiry, there is no hindrance to Amiel’s assertion of his own Eighth Amendment rights (to the extent that he actually is the owner of the currency, a matter regarding which I express no opinion). Any hindrance that he could assert, viz. his inability to participate in the instant lawsuit, is entirely of his own making. While hindrances capable of satisfying this requirement need not be imposed entirely by the state, Powers, 499 U.S. at 414-15, 111 S.Ct. 1364, they cannot be entirely self-imposed either. Cf. Miller v. Albright, 523 U.S. 420, 448, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (O’Connor, J., joined by Kennedy, J., concurring in the judgment) (finding no third-party standing because “any hindrance to the vindication of [the first party’s] constitutional rights[was] ultimately self imposed”); id. at 474, 118 S.Ct. 1428 (Breyer, J., joined by Souter and Ginsburg, JJ., dissenting) (disagreeing with the concurrence on the grounds that “[t]he conclusion that the Government ‘hindered’ [the first party’s] assertion of his own rights ... is irresistible” (emphasis added)).

There is no reason Amiel could not have participated in this suit other than his failure to file a timely claim and to offer the district court any reason whatsoever to accept his untimely one. He was put on proper notice of the seizure, and failed at any point to make a valid claim for the funds’ return. He never petitioned the district court to accept his procedurally deficient and untimely claim, and never attempted to supplement the record with any facts or documents substantiating his questionable proprietary interest in the seized funds. He never verified his claim despite the existence of a clear local rule (and accompanying form) available for that purpose. In sum, he displayed a complete lack of diligence in pursuing his claim, which is why the district court rejected it. Furthermore, the government never took any action to hinder or preclude his ability to file a proper claim. A simple disregard for rules and procedures cannot constitute a “hindrance” sufficient to vest a third party with standing to pursue one’s claims on one’s behalf.

I would therefore hold that Mayzel does not have standing to assert the Eighth Amendment rights of the owner of $100,000 of the seized currency. Nor does California state law confer a sufficient interest in him as a gratuitous bailee to confer standing in his own right. To the extent that Mayzel is himself the owner of the remaining $348, a fact he has not yet proved up, he does have standing to contest the constitutionality of that forfeiture.

It is important to explain what I would not hold. I would not hold that Mayzel lacks standing to bring the instant suit; it is clear that he does. See United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1057 (9th Cir.1994) (“In order to contest a forfeiture, a claimant need only have some type of property interest in the forfeited items. This interest need not be an ownership interest; it can be any type of interest, including a possessory interest.”). Rather, I would hold that to have standing to challenge the constitutionality *1130of the amount of forfeiture under the Excessive Fines Clause, a claimant must be the person who is “punished” by the forfeiture, or a third party who is entitled to assert that person’s rights in forfeiture litigation.

Mayzel suffered an injury in fact when the currency was seized from him at the airport. The mere fact that he suffered some cognizable injury does not mean that the proposed forfeiture “punishes” him for Eighth Amendment purposes, or that he is entitled to assert the constitutional rights of any person who may have been so punished. (Indeed, the district court correctly held that Mayzel was not entitled to assert an “innocent owner” defense to the forfeiture, because he was not the defendant currency’s owner.) Rather, it permits him only to challenge the legality of the seizure itself and make any related claims. See, e.g., Nat’l Comm. of the Reform Party of the United States v. Democratic Nat’l Comm., 168 F.3d 360 (9th Cir.1999) (dismissing some claims for lack of standing but deciding others on the merits); cf. Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331, 1339 (11th Cir.2000) (quoting 13 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531, at 568 (2d ed. Supp.2000)) (“ A party with standing to advance one claim may lack standing to advance other claims....’”).

The result of the majority’s excursion into a supposed relationship under state law is to award Mayzel a $90,0005 windfall. Therefore, I dissent.

. While it is true, as the majority argues, that California law defines a "gratuitous bailment” relationship, under which bailees are vested with certain, de minimis obligations, see Cal. Civ.Code § 1844, it is not true that such a relationship automatically raises the stakes for such a bailee to the level of a property owner "punished” for Eighth Amendment purposes by a forfeiture. As discussed below, it remains necessary to conduct a third-party standing analysis to determine whether any non-owner has a sufficient stake in the seized property to be entitled to assert the owner's constitutional rights therein.

. That Congress has recently weighed in on this issue is irrelevant to this case. Included in the claimant-friendly Civil Asset Forfeiture Reform Act of 2000 was a provision granting any "claimant” the right to “petition the court to determine whether [a] forfeiture's] constitutionally excessive.” CAFRA § 2, 114 Stat. at 209-10 (enacting 18 U.S.C. § 983(g)). Of course, third-party standing is a prudential, judge-made doctrine, Craig v. Boren, 429 U.S. 190, 193, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), which Congress can eliminate by statute, see Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979). Thus, in forfeiture proceedings governed by the provisions of CAF-RA, any claimant, whether the owner of the seized property or not, is entitled to assert a challenge based on the Excessive Fines Clause. However, as explained in Part III supra, the instant suit is not governed by CAFRA because it was filed before the statute's effective date. Thus, contrary to May-zel's suggestion, the amendments in CAFRA do not affect this case.

. Ordinarily we would not reach this question because a party is deemed to have waived any argument it fails to raise before the district court or in its briefs on appeal. See Idaho Watersheds Project v. Hahn, 307 F.3d 815, 830 (9th Cir.2002) (before district court); Mauro v. Arpalo, 188 F.3d 1054, 1059 n. 2 (9th Cir.1999) (en banc) (appellate briefs). Theories pertaining to California state law are addressed here only because the majority introduces them into this appeal.

. The majority attempts to bootstrap the state law gratuitous bailee analysis into the question of whether federal law provides Eighth Amendment standing. However, the case it cites for this effort, Alcaraz-Garcia, holds exactly to the contrary. In Alcaraz-Garcia, the legal interest of the bailee was not analyzed at all. Alcaraz-Garcia, 79 F.3d at 774-76. Rather, the court analyzed whether the bailor retained a sufficient "legal right” in the bailed property. Id. Thus, Alcaraz-Garcia stands merely for the general well-accepted proposition that it is the owner of the property who is punished by forfeiture. The majority's reliance on Alcaraz-Garcia is thus misplaced.

. I would have remanded to provide Mayzel the opportunity to prove that he “owned” the remaining $348 of the seized funds which he handed to Inspector Uscanga at the airport.